Lege committee looking to tweak Drivers Responsibility Program; incentive program about to gear up

The Texas House Homeland Security and Public Safety Committee plans to draft legislation during the interim to reform, but likely not eliminate, the Driver Responsibility Surcharge - at least unless somebody finds a source to supplant the revenue generated by the program. Go here to watch Monday's hearing online, with the portion on surcharges beginning at the 1:37:15 mark.

Rebekah Hibbs, who runs the program for DPS, told the committee a new "incentive" program for drivers between 125% and 300% of federal poverty levels will come online by the first of October, joining a more generous indigency program created in 2010. Drivers who qualify can have their surcharges reduced by 50% and pay the amount in a lump sum or over a six month stretch. (Those who qualify for the indigence program can have them reduced even more.)

Only four states have similar programs and none are very successful, said committee Chairman Joe Pickett, who appears to have been delving into the weeds on the topic. Since the Driver Responsibility Program's implementation in 2003, the state has assessed $3.2 billion in surcharges but only received about $1.2 billion in payments. That $2 billion in unpaid surcharges has caused a couple of million drivers to lose their licenses, with more than 1.2 million of them still suspended as of this week. Because most of these are working people who need their car to drive, Williamson County Justice of the Peace Edna Staudt told the committee, they usually continue to drive anyway.

Staudt and Hibbs disputed whether DPS will allow those folks to get an occupational license. Hibbs insisted it was legal but Judge Staudt said as a practical matter "they won't do it." A committee member who was an attorney (couldn't tell who from the video) said his firm charges $2,500 to secure an occupational license, so that's probably not a realistic option for low-income folks, anyway.

These surcharges are issued for accruing too many points from moving violations, driving without insurance, driving with a suspended license, and DWI, but the driver of such enormous numbers are tickets for no insurance. This can create a vicious cycle: People can't afford insurance and get ticketed. They pay the ticket but can't afford the surcharge so their license is suspended, anyway. Because they must get to work, they keep driving, then if they're stopped again they get more surcharges for both the insurance offense and driving with a suspended license.

By then, even if they pay the surcharges their license is still suspended for at least a year, giving them little incentive to pay up. To get their license reinstated they must pay even more fees - between $100 and $425, the committee was told. No wonder nearly 2/3 of surcharges go unpaid.

In response to questioning, Hibbs told the committee that these surcharges could be eliminated through Chapter 13 bankruptcies but not Chapter 7. Rep. Dan Flynn pointed out the oddity of that situation: Chapter 13 is a reorganization of debt while typically Chapter 7 is more sweeping. But Hibbs said a case styled Holder v. State of Texas (a driver named Holder, not the US Attorney General) found that the surcharges were essentially similar to a criminal punishment and therefore couldn't be vacated. That's bizarre considering these are explicitly civil surcharges over and above any criminal penalties, but that was the ruling.

Judge Staudt argued for abolishing the program entirely and going back to punishing these offenses exclusively through the court system. "It's an unjust program," she told the committee. Texas is "creating a debtors prison," she said, lamenting that there's "no due process" in the application of surcharges.

Chairman Pickett asked Staudt how to replace the trauma care funding and she suggested it would be better to do it through court fees, which are presently $95 on most traffic tickets, she told the committee. Pickett said there was "no way" the Lege would eliminate the program without an alternative funding source but Staudt replied, "I beg you to look at the fact that you're going to have to put the need for the money aside." Right now, she pointed out, the "state gets money from the program but the counties, the courts, and the people are paying the price." The overall cost to the locals, she said, was greater than the benefit to the state.

Grits should also mention a report from the state auditor issued earlier this year on the contract with Municipal Services Bureau to run collections for the surcharge program. The report criticized DPS for two significant errors: Failing to run the contract by the Legislative Budget Board before approval and failure to notify competing bidders of changes to the RFP. That gave MSB the upper hand because competitors didn't know to update their bid applications in light of additional requirements. The audit was not discussed at Monday's hearing but Hibbs told the committee the contract will be up for re-bid in late 2014.

The audit also revealed that MSB is raking in more money than just the 4% commission that's been previously disclosed, charging debit and credit card fees as well as an extra fee for each payment in an installment plan. According to the audit, "For example, an individual convicted of driving while intoxicated will be assessed a surcharge of $1,000 per year for three years. If the individual uses a credit card to make monthly installment payments over three years, that individual would pay a toal of $3,286.50: $120 in service fees, $76.50 in credit card fees (unless prohibited by law), $90 in installment fees, and the $3,000 surcharge." By those figures, MSB would be charging drivers an additional 5.5% on top of their 4% commission if they used a credit card to pay in installments. In all the years Grits has been working on this issue, that's the first I've heard of those extra costs.

Rep. Dan Flynn said the committee is looking more seriously at revamping the program than ever before and that appears to be the case. If one were to judge by suggestions from Hibbs and Staudt at the hearing, we could see them eliminate or scale back mandatory drivers license suspensions and perhaps explicitly change the law to allow surcharges to be discharged through bankruptcy proceedings. They could also streamline the occupational license program so you don't have to pay a lawyer $2,500 to get one. (Hibbs said she'd sent three pages of reform suggestions to Pickett, but when Grits requested the document from DPS their public information office wouldn't give it to me and said to file an open records request. I did; more on that later, hopefully.)

Really, though, Judge Staudt nailed it: This is a bad, "unjust" program that should be flat-out eliminated. If the state wants to subsidize trauma hospitals (despite all the Ted Cruz rhetoric hailing the benefits of market forces in healthcare), they should do it with general revenue dollars. The state hasn't even been paying hospitals the full amount, instead using DRP funds to "certify" the budget instead of doling out the full sums. Punish traffic offenses through the courts: At the end of the day, the DRP surcharge is and always has been just a tax by another name.

Pickett said he expected this issue to be among the committee's interim charges when they're finally released, meaning they'd likely have at least one more hearing on the topic before the 84th session convenes in 2015. However, he said he hoped to have a first draft of possible reform legislation put together by the end of the year.

See prior, related Grits posts:

• Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge
• House rep promotes abolition of Driver Responsibility surcharge
• Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?
• Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?
• Few defendants getting surcharges waived by judges based on indigence
• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'

Appellate court: Drivers with licenses suspended over unpaid surcharges are eligible for occupational licenses

Drivers whose license was suspended because of failure to pay Texas' Driver Responsibility surcharge (the civil fees paid for three years in addition to fines for certain traffic offenses) are eligible to apply for occupational drivers licenses, according to an appellate ruling out of Fort Worth's Second Court of Appeals last week, despite DPS' insistence to the contrary. According to background on the case from the opinion:

Mr. [Barry] Wood is indigent and unable to pay the surcharges to lift the suspension.  The Department of Public Safety (DPS) sent Mr. Wood a letter explaining that DPS would be implementing various programs to reduce or waive surcharges for those who cannot pay them, but none of those programs will be in effect until 2011.  The letter also provided Mr. Wood instructions for applying for an occupational license.

Mr. Wood then petitioned the trial court for an occupational license, claiming that his license was suspended for his failure to pay the surcharges and that he has an essential need for transportation to and from work and other locations as required by his probation plan.  There is no reporter’s record of the hearing, but the clerk’s record shows that DPS submitted a memorandum after the hearing in which it argued that a person suspended for failure to pay the Driver Responsibility Program surcharges is not of the class of people to which an occupational license may be granted.  The court denied Mr. Wood’s petition for an occupational license “for petitioner’s failure to pay surcharges or enter into an installment agreement.”

The appellate court disagreed, however, and said failure to pay DRP surcharges did not under law preclude provision of an occupational license. "Mr. Wood’s license is not suspended for any of the listed reasons which would prohibit him from obtaining an occupational license.  The statutory list is exclusive, and we cannot expand it."

If DPS has been routinely submitting memoranda to courts arguing "that a person suspended for failure to pay the Driver Responsibility Program surcharges is not of the class of people to which an occupational license may be granted," this could open the door for drivers to get occupational licenses if they don't qualify for indigence or amnesty programs the agency will implement in the next few months, certainly within the jurisdiction of the Second Court of Appeals.

Between this ruling and the new DPS rules, a little wiggle room is beginning to open up for the 1.2 million drivers who've lost their licenses in this expensive, self-defeating surcharge cycle to make their way back to becoming legal, licensed and insured. Really, though, best of all would be if the Lege just called the whole thing a failed experiment and passed Rep. Leo Berman's HB 299 to abolish the surcharge altogether.

DA's Association: 'Juice ain't worth the squeeze' on DWI license suspensions

The Austin Statesman earlier this week, reporting in conjunction with KVUE-TV, published a pair of articles (see here and here, and also KVUE's story) on the rise of occupational licenses for people with administrative license suspensions for DWI and other offenses. I was fascinated in particular to see our friends at the Texas District and County Attorneys Association come out in favor of eliminating license revocations altogether:

Some critics say taking a person's license upon arrest causes the state to spend millions each year in appeal hearings and other administrative costs — some place the estimates at $3 million — and can ultimately damage criminal cases.

"I guess the simplest way to put it is that the juice ain't worth the squeeze," said Shannon Edmonds , an attorney who works in the government relations office for the Texas District and County Attorneys Association. "The time and expense spent on suspending someone's license before they are convicted isn't justified" by the cost to the state, Edmonds said.

He said prosecutors also have long been frustrated by defense lawyers who use the appeals hearings to preview the criminal case against a client or to gather evidence.

For instance, he said, attorneys often question police officers under oath in the hearings, then use any inaccuracies or misstatements on details against the officers during criminal trials.

"It is useful because police officers don't get to make stuff up later in court," said attorney Jamie Balagia, who operates the website dwidude.com. "A good lawyer knows how to lock down testimony."

Edmonds said the law also has created profitable business for defense lawyers, some of whom charge several hundred dollars to represent their clients in the hearings and to seek an occupational license for them.

A similar recommendation was made this summer by David Hodges, the Judicial Liaison for the Texas Center for the Judiciary, who suggested eliminating most administrative license revocations (ALRs) that aren't required by federal law in order to reduce the costs for administrative hearings and especially the number of driving with suspended license cases flooding Texas' county courts at law.

(Of course, with the Driver Responsibility Program being responsible for more than 1.9 million revoked licenses, 1.2 million of which have yet to be reinstated, eliminating that ill-conceived program might do more than anything else to resolve the costs and problems associated with revoked driver licenses, occupational licenses, etc., but that's a slightly different issue than pretrial revocation for DWI.)

On the DA's Association website, Edmonds clarified that "my suggestion was not to end ALR and replace it with nothing, but to replace it with ignition interlocks after arrest." Most license revocations, though, have nothing to do with DWIs, and pretrial (i.e, pre-conviction) punishments come with their own complications, so I'd prefer unlinking the two issues: The ALRs need to go, regardless of how the state chooses to reform its DWI laws.